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The Beach Co. wins the Sgt. Jasper battle, but the war is far from over

This Means BAR



The Beach Company won a significant legal battle last week in its ongoing Sgt. Jasper dispute when a Charleston County judge ruled in its favor on its appeal against the city. In that ruling, Circuit Court Judge J.C. Nicholson ruled that the Charleston Board of Architectural Review overstepped its authority when it denied the Beach Company's application to redevelop the Sgt. Jasper property downtown.

While this decision strengthens the Beach Company's claim that the revised application it presented to the BAR on June 3 should have been approved, it hardly ends the dispute. The City of Charleston has 30 days to decide whether it will appeal the circuit court's decision to the state Supreme Court. If the city does appeal, a final decision on the case may not come for another year or more.

Meanwhile, the Beach Company's leverage in negotiating a more favorable outcome has increased immeasurably in light of the court's ruling. Usually, when an appellate court grants an appeal of a lower decision, the case is then remanded back to the lower tribunal to "correct" its decision in light of the higher court's ruling. If the BAR erred in denying the Beach Company's last application on Sgt. Jasper, then it stands to reason that a correction of that error would result in a vote approving the same application. If the city chooses not to appeal, there will be a strong legal argument to suggest that the BAR would be required to approve the Beach Company's last application when it is re-presented to the board.

But several things have changed since the BAR's fateful decision which set this whole process in motion. First, the review board has changed. Since the BAR denied the Beach Company application in June, it has been split into two complimentary boards: one handling small projects and the other handling large ones. Several members of the original board that voted on the Sgt. Jasper project, including some who voted to deny the application, are no longer on the board.

Additionally, the city administration has changed. Mayor Joseph P. Riley, Jr. who came to the June 3 BAR hearing to speak in favor of the final Beach Company application, was replaced by Mayor John Tecklenburg, who called on the Beach Company to drop the very lawsuit it just won while he was running for mayor. Presumably, his support of the Beach Company's final application is not as strong as Mayor Riley's was.

Lastly, the change in administration also coincided with some changes in Charleston staff, as long-time planning officials such as Tim Keane and Yvonne Fortenberry are no longer with the city. It should be noted that the city staff recommendation on June 3 was to approve the Beach Company's revised application on Sgt. Jasper, a recommendation that the BAR rejected in a 3-2 vote. If the case is remanded to a new board, with new members and a new staff under a new administration, it would be interesting to see if a re-submittal of the same application would result in a different outcome, especially in light of the circuit court's recent ruling. Based on that ruling, it is not clear that the board has a choice.

It is understandable that the city had to defend a legal action that challenged the constitutionality of the BAR, but that portion of the Beach Company's appeal was rejected by the court. If the legal battle continues, it will solely be based on the new administration's willingness to fight against an outcome that the previous administration endorsed.

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